Primary Cullers: Does Virginia Pass the Fairness Test?

On March 6, when the Commonwealth of Virginia holds its Republican presidential primary, many people would vote for Newt Gingrich or Rick Perry, if they could. But, unless a federal court rules otherwise on constitutional grounds, neither Gingrich nor Perry will be on the ballot in the Old Dominion – and there won’t even be a line for voters to write in their names.

Virginia, birthplace of eight Presidents, including four of the first five, is doing democracy wrong in the twenty-first century.

In the earliest years of the American experiment in democracy, a caucus of a party’s members in Congress chose the party’s candidate for president. Events in 1824 led to the practice of party delegates gathering at a national convention to choose a candidate. In each Congressional district, local caucuses of party members chose delegates to a district convention. Delegates at the district conventions chose delegates to state conventions. Delegates at state conventions, in turn, chose delegates for a national convention.

Florida held the first presidential primary in 1904. Until the last quarter of the twentieth century, however, only a minority of states held primaries. In the Democratic primaries of 1968, Eugene McCarthy won the most votes, but delegates at the Democratic convention nominated Hubert Humphrey, who had not even participated in primaries. Many at the convention were disenchanted. The Democratic National Committee appointed a commission to look into ways to curb the power of party bosses and give others more opportunity to participate. Although the McGovern-Fraser Commission had not foreseen it, to comply with its guidelines in many states Democrats chose to hold primaries. Republicans too switched to primaries.

Rick Perry makes a point.

Because the earliest primaries get so much attention, in 1988 Democrats in states of the South and border states “front-loaded” primaries in their states, holding them early in the campaign season, on the first Tuesday of March. Virginia, like some other states, took names of candidates from the news and placed them on its ballots. Although Democrats in the South thought their plan for Super Tuesday would steer the Democratic nomination to a centrist candidate, Jesse Jackson won in Virginia and several other states. Virginia reverted to caucuses.

In 1998 Virginia changed the number of signatures of registered voters it required on a petition of a candidate in a primary election for statewide office–governor, lieutenant governor, attorney general, or United States senator–from one-half of one percent of registered voters to 10,000. The next year the General Assembly reinstated presidential primaries in Virginia and required 10,000 signatures of registered voters on a petition of a candidate in a presidential primary.

Last October, Michael Osborne, independent candidate for a legislative seat in Richmond, sued the chairman of the Republican Party of the Fifth District of Virginia because the chairman did not verify whether people who signed the petition of the Republican candidate registered to vote.

In an undated letter Pat Mullins, the Chairman of the Republican Party of Virginia, announced, “If any candidate submits fewer than 15,000 signatures of registered voters on valid petitions statewide…, the Republican Party of Virginia will individually verify signatures until the 10,000 signature statewide threshold…is met.” They did, in fact, verify signatures this year and claimed that Gingrich and Perry came up short. In a telephone interview with CNSnews.com Mullins claimed he had never heard of the Osborne lawsuit and was just doing his duty, but the Republican Party of Virginia issued a statement in which it admitted it only notified the candidates of its “15,000 rule” in October 2011.

Rick Perry sued the Chairman of the State Board of Elections in federal court, questioning the constitutionality of Virginia’s petition requirements. Newt Gingrich, Michelle Bachman, Rick Santorum, and Jon Huntsman joined Perry’s lawsuit.

Ken Cuccinelli makes a point.

In a strange twist, the Attorney General of Virginia, Ken Cuccinelli, who has a constitutional duty to defend Virginia against Perry’s lawsuit, came out in favor of emergency legislation to put on the primary ballot the names of all candidates who qualified for federal matching funds. The next day he changed his mind but called Virginia’s system “burdensome.” Unlike ordinary legislation in Virginia, emergency legislation may go into effect right away–but emergency legislation requires a supermajority of four-fifths of each house of the General Assembly.

Ironically for Gingrich, Perry, and their supporters in the Republican Party of Virginia, according to Ballot Access News, “The Democratic Party of Virginia has been opposed to the strict law on primary ballot access, and has been in the habit of collecting signatures for all Democratic presidential candidates recognized by the party. In 2008, the state party collected 7,300 signatures for all its candidates, thus easing the burden on them and requiring them to collect only 4,000 to 5,000 on their own.”

According to an article in Wikipedia about ballot access, “Historically, there were generally no restrictions on ballot access in the United States,” until legislatures “controlled by established political parties (specifically, the Republican and Democratic Parties)…enact[ed] restrictive ballot access laws to influence election outcomes to ensure re-election of their own party’s candidates.

“Perhaps the most prominent advocate of the 1880s ballot reform movement, Dean Wigmore, suggested that ‘ten signatures’ might be an appropriate requirement for nomination to the official ballot for a legislative office. In the twentieth century, ballot access laws imposing signature requirements far more restrictive than Wigmore had envisioned were enacted by many state legislatures; in many cases, the two major parties wrote the laws in such a way that the burdens created by these new ballot access requirements (usually in the form of difficult signature-gathering nominating petition drives) fell on alternative candidates, but not on major party candidates. Proponents of more open ballot access argue that restricting access to the ballot has the effect of unjustly restricting the choices available to the voters….”

Beyond its stringent requirements for signatures, Virginia, like many states, has a “sore loser” law that bans the names of losers in a primary from the ballot in the main election (section 24.2-520 of the Code of Virginia). Connecticut, like a few other states, has no “sore loser” law, which means that even though Joe Lieberman lost in the Democratic primary for one of the US Senate seats in that state, he was allowed to add his name to the ballot in the general election, which he won.

Virginia limits ballot access to parties with at least 10% of the vote in the previous election. Only two states, Pennsylvania (15%) and Alabama (20%), present a higher hurdle, while most other states set the bar at two percent. Only one third party, Ross Perot’s Reform Party, ever made its way onto Virginia’s ballots.

In The Importance of Ballot Access in the spring 1994 issue of the The Long View, a public policy journal of the Massachusetts School of Law at Andover, Richard Winger, who sits on the editorial board of the Election Law Journal, wrote:

“In reality, America’s ballot-access laws are so stringent, and third parties are repressed to such a degree, that the U.S. is probably in violation of the Copenhagen Meeting Document, an international agreement the U.S. [George W. Bush] signed in 1990 that requires nations to:

‘Respect the right of individuals and groups to establish, in full freedom, their own political organizations and provide such political parties and organizations with the necessary legal guarantees to enable them to compete with each other on the basis of equal treatment before the law and the authorities.’

“How does the U.S. violate this agreement? Suppose that a new party were founded in 1994, with popular support that equaled that of the Democratic or Republican Party. In order to contest all the executive and legislative offices up for election on November 8th, 1994, it would need to collect about 4,454,579 valid signatures. And some of these signatures would need to be collected ten months before the election. By contrast, the Democratic and Republican parties would not need to submit any signatures to get themselves on the ballots, and their candidates would need only to collect about 882,484 valid signatures to place themselves on primary ballots.

“The extreme disparity of the burdens placed on old, established parties versus new parties has no parallel in any other democratic nation in the world. Indeed, the number of signatures required for Democrats and Republicans to get on primary ballots is itself too high in some states, and as a result about 25% of all state legislative races present the voter with only one candidate on the general-election ballot.

“In Britain, the political science model of a healthy two-party system, every candidate for Parliament faces the same ballot-access hurdle– a simple filing fee. Candidates, regardless of their party affiliation, are granted two free mailings to all the voters, and every candidate gets a certain amount of free TV and radio time. There exists legal equality between all the parties. Yet Britain has a healthy two-party system, as did America in the 19th century.”

In the years leading up to the Civil War, a third party sprang up and changed America forever. Would Abraham Lincoln’s new Republican Party have had a chance to succeed if faced with today’s election laws?

Charlie McKeon grew up in Alexandria VA, graduated from the University of Virginia, and worked in information technology for the federal government and America Online. At his home in Ashburn, he currently sponsors a refugee family that came to the United States under political asylum in August of 2011. The three best things that have happened in Virginia in his lifetime, he says, are civil rights, George Mason University, and the community college system.